Complainant

Respondent

Parties

Katie  Hayes Kelly

Bare Beauty Clinic

Representatives

Maurice Osborne BL instructed by Joan Doyle Solicitor

Valerie Morrison of Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00049192-001

14/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00050580-001

04/05/2022

The Complainant worked for the Respondent as a Beauty Therapist from the 25th of June 2021 until the 4th of November 2021.

The Complainant submitted complaints under the Employment Equality Acts on the 16th of March 2022 alleging victimization and harassment and discrimination under three discriminatory grounds, Family Status, Disability and Religion. These complaints were given the reference number CA-00049192-001.

There was a spelling error in this form and when the Complainant discovered this she submitted an new form with the same allegations. This was given the designation CA-00050580-001.

CA-00050580-001 is essentially a duplicate of CA-00049192-001. As such I have proceeded to consider the case on the basis that there is a single complaint, CA-00049192-001 which was amended by the Complainant’s subsequent form.

With the benefit of representation, the Complainant’s complaints changed somewhat. The complaints of discrimination due to disability and of victimisation were not pursued in hearing. The Complainant also claimed discriminatory constructive dismissal related to her resignation in November 2021. On review of the narrative contained in the complaint form I am satisfied that the substance of a discriminatory constructive dismissal is outlined by the Complainant in the form as such I have considered this complaint.

The Complainant attended the hearing and gave evidence under affirmation. The Respondent attended the hearing and Ms Maria Hantari and Ms Caitriona O’Brien gave evidence under affirmation.

Much of this evidence was in conflict between the parties.  I have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions which I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The Complainant applied for a job with the Respondent in June 2021 and was interviewed by Ms Hantari. She was clear that she was looking for a full-time role and was offered 5 days working 41 hours a week. She started working on the 26th of June 2021.

She got on well in the role and enjoyed working with the clients. The relationship deteriorated from September 2021 due to the actions of the Respondent.

The Complainant’s submissions detail three key complaints under the Employment Equality Acts.  

The Complainant was harassed on the basis of religious belief, in her case for not having one, in September 2021. In October 2021 she was also discriminated against on the basis of family status when her hours were cut to facilitate a colleague with children increase their hours after the schools resumed. Finally, in November 2021 these discriminatory actions forced the Complainant’s resignation.

The Respondent maintains that they were fair to the Complainant at all times and are a diverse organisation which promotes dignity and respect in the workplace. They entirely reject the allegations of discrimination and harassment.

The Respondent has a detailed grievance procedure outlined in its handbook and the Complainant raised no complaints while she worked with them. 

I have jurisdiction of this dispute by way of Section 77 of the Employment Equality Acts.

Subsection (5) (a) states that:  Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

As such I have jurisdiction to consider complaints which occurred from the 14th of September 2021 and the option to extend that jurisdiction, for reasonable cause, until the 14th of March 2021.

The Complainant has argued that the employment relationship deteriorated following interactions with Ms Hantari on the 2nd and 3th of September which constituted harassment on the ground of religious belief, the Complainant went on annual leave on the 15th of September and returned at the start of October 2021.

The Complainant has alleged that the harassment carried on into the cognisable period, that is after she returned from leave. She is also claiming constructive discriminatory dismissal which would of course be influenced by events leading up until the end of the employment relationship.

I am of the view that in order to make coherent findings as to the complaints which occurred within the cognisable period I am required to consider earlier events. However, for the avoidance of doubt I see no reason to extend the cognisable period and accept jurisdiction of complaints which occurred before the 14th of September 2021.

Claim of Religious Harassment, September 2021.

The Complainant has claimed that Ms Hantori harassed her for not being religious. Both the Complainant and Ms Hantari gave evidence of their interactions in September 2021.

The Complainant claims that on the 2nd of September 2021 Ms Hantari took her aside and began asking her about how she was. She then asked her was she religious and did she pray. The Complainant replied that she sometimes prayed to her Grandfather who was deceased. The Complainant alleges that Ms Hantari laughed at this and told her praying meant praying to God. The Complainant felt embarrassed and humiliated due to this interaction. The following day Ms Hantari gave the Complainant a book about family trauma. The Complainant went on annual leave after this and did not return until the last two weeks in September. When she came back from leave, she was told to remove her eyelashes and nails. The Complainant’s submissions argue that this was a continuation of the religious harassment she suffered.

Ms Hantari provided a different account of the interactions on the 2nd of September. She recounted talking to the Complainant in the break room and disclosing to her about her own background and faith. She said that faith had really helped her and asked the Complainant if she ever prayed. The Complainant told her that she sometimes prayed to her Grandfather, Ms Hantari responded that she should pray to God. She never laughed at or was dismissive towards the Complainant for praying to her Grandfather. The following day Ms Hantari gave the Complainant a book about family trauma. The book contained no religious themes. There was a culture of sharing books in the Respondent’s break room. Ms Hantari did remember discussing the Complainant’s nails with her. Long nails were not appropriate in the Respondent’s salon.

I am satisfied from the above evidence that when the Complainant was asked to remove her nails in early October it was unrelated to her not being religious. The earlier interactions on the 2nd and 3rd of September seem entirely separate and fall outside the cognisable period.

As such the claim of religious harassment must fail.

Claim of Discrimination of Family Status. October 2021

The Complainant has alleged that she was discriminated against on family status when her hours were reduced to facilitate a colleague returning to full time hours following their child returning to school. The Complainant does not have any children.

In evidence the Complainant contradicted this position and alleged that Ms Hantari, on the 2nd of September 2021, said that she would reduce the Complainant’s hours because she did not think she was mentally fit for the hours she was working and that she needed to work less hours in order to keep up with the standard expected.

The Respondent disputed the Complainant’s evidence on both accounts. Ms Hartari provided evidence that the Complainant asked for her hours to be reduced due to her finding the role difficult. Ms Hantari also disputes that the Complainant’s shifts were given to another colleague and provided rosters demonstrating that this colleagues hours first increased while the Complainant still worked full time.

While I make no finding as to whether the Complainant asked for her hours to be reduced or whether this was forced on her by the Respondent, I am satisfied that whatever happened was unrelated to the Complainant’s colleague increasing her hours following her child returning to school. In particular I note that this position is supported by the Complainant’s own evidence which attributed the decision to reduce her hours to Ms Hantari believing that she was not up to the full time role and that this decision was made a month earlier than alleged in her submissions.

Claim of Discriminatory Constructive Dismissal, November 2021.

The Employment Equality Acts prohibit discriminatory dismissal. Dismissal is defined in a way that includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

The Complainant resigned her post on the 4th of November 2021. She has alleged discriminatory constructive dismissal. In submissions she argues that because of the discriminatory conduct of the Respondent it was reasonable for her to terminate her contract of employment and because of the discriminatory reduction in her hours she was subject to discriminatory breach of her contract.

As outlined above I have not found that the reduction in the Complainant’s hours was discriminatory.

The Complainant maintains she was harassed by Ms Hantari on the 2nd of September for not adhering to the same religious belief as Ms Hantari. Ms Hantari’s and the Complainant’s accounts are at odds as to whether Ms Hantari laughed at the Complainant’s beliefs, there is no other evidence of this interaction and in the circumstances, I see no reason to prefer one account over the other, as such it remains unproven. Aside from that issue the parties mostly agree with what happened on the 2nd of September.  Ms Hantari entirely unprompted quizzed her employee about her religious beliefs and encouraged her to pray.  This interaction was inappropriate. However, if the Complainant was aggrieved or felt harassed, she could have rasied the issue via the Respondent’s grievance process or even informally. The Complainant did none of these things. In any event, this incident alone, though inappropriate was not a serious enough to meet the threshold for constructive discriminatory dismissal.

CA-00049192-001

The complaint is not well founded.

CA-00050580-001

The complaint is not well founded.